Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
The Issue Whether petitioner was entitled to terminate respondent's employment or suspend her without pay because she failed to disclose two traffic infractions, an arrest, and several charges of law breaking?
Findings Of Fact In July of 1986, while a resident of Day, Florida, respondent Gloria Faye Townsend signed an application for employment by the Columbia County School Board. Among the questions on the form was No. 33, which asks: Have you ever been arrested, charged or held by military or civilian law enforcement authorities for violation of any law, ordinance or regulation? (Include traffic violations but not parking tickets) After the question came "yes" and "no," each followed by a box. Ms. Townsend, who completed the form herself, typed an "X" in the box next to "No." Petitioner's Exhibit B. Just above Ms. Townsend's signature appears the following: ... I also understand that employment is contingent upon the results of a thorough character and fitness investigation. [For which] I hereby give authority on this application[.] I am aware that willful withholding of information or making of false statement on this application will be the basis for dismissal. I agree to those conditions and hereby certify that all statements made on this application are true, complete and correct to the best of my knowledge. Petitioner's Exhibit B. Ms. Townsend submitted the completed form to the School Board. Some time later Earl Varnes, to whom Ms. Townsend had disclosed her hope of finding a teaching position in Columbia County, learned of a mid-year vacancy Grady D. "Sam" Markham anticipated at Five Points Elementary School. Mr. Varnes mentioned Ms. Townsend, who at all pertinent times has held a Florida teacher's certificate, no. 341799, to Mr. Markham. As principal for nine years, Mr. Markham's recommendation of a teacher to replace the one who left on maternity leave December 19, 1986, proved dispositive. Before he met Ms. Townsend, Mr. Markham had heard from Mr. Varnes about problems Ms. Townsend had encountered in Lafayette County, where she had resigned a teaching position, and been harassed by at least one law enforcement officer. Mr. Markham discussed traffic citations and other matters with Ms. Townsend during three face-to-face interviews and some dozen telephone conversations that preceded her coming to work. Mr. Varnes was not aware, however, that Ms. Townsend had been found guilty of passing a school bus while it was stopped or that she had been charged with opposing a police officer. (T. 112, 117, 118). After the initial interview, Mr. Markham "went to the School Board office and looked at the application" (T. 20) Ms. Townsend had submitted the preceding summer. He relied in part on the application in recommending her for the job. He did not, however, ask her about her mistaken affirmative answer to question No. 20(a), "Has your license to practice every been revoked or suspended?" Although Mr. Markham testified that he would not have recommended her for employment if he had known of her arrest or of the school bus infractions, (T. 23) she "told him about the bus stops ... the careless driving ... the deputy." (T. 81). Mr. Markham heard another version of events in December of 1987 from William F. Hart, who is principal of Lafayette Elementary School. After obtaining court records, Mr. Markham relayed information concerning Ms. Townsend's traffic infractions and arrests to Silas Pittman, who suspended Ms. Townsend effective March 8, 1988, and recommended to the School Board that she be suspended from employment, without pay, and that her employment be terminated. The School Board voted first to suspend, then to terminate her employment. In April of 1987, Mr. Pittman and Ms. Townsend executed an annual contract of employment for the period August 17, 1987, to June 4, 1988. Joint Exhibit No. 21. The agreement provides that "The teacher shall not be dismissed during the term of this contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes." Id. The Law and Ms. Townsend On January 23, 1981, a Deputy Feagle of the Lafayette County Sheriff's Office stopped the car Ms. Townsend was driving and proposition her, but she was not interested. (T. 67) She has not been accused of violating any law on that day. On May 1, 1981, when she spotted Deputy Wendell Feagle manning a road block on the highway ahead of her, she turned onto another road "a secondary road ... instead of going through the road block ... and ... went through the Forestry Services, and then got back up on the highway ... and then went on home." (T. 68-69). About two weeks later, four or five "Sheriff's cars" arrived at the school where Ms. Townsend taught at the time. Asked to "come ... and talk with the judge" (T. 70), she got into the car Deputy Kenny Wimberly was driving. Instead of stopping at the courthouse, the caravan made its way to the jail in Mayo where a deputy sheriff gave her "five tickets." Nobody took Ms. Townsend's finger prints or told her she was under arrest. Petitioner offered in evidence two of the traffic citations Ms. Townsend received on May 1, 1981, No. 225-081W, charging careless driving, Petitioner's Exhibit No. 1, and No. 225-082W, charging her with "Attempting to Elude A Police Officer." Petitioner's Exhibit No. 5. On July 2, 1981, she was convicted "of the crime of [o]perating motor vehicle in a careless manner," Petitioner's Exhibit No. 3, and fined $25, but all other charges against her arising out of the events of May 1, 1981, were dismissed. Petitioner's Exhibit Nos. 7 and 9. (T. 74) Among the charges dismissed was the charge that, on May 1, 1981, "Faye Townsend did ... unlawfully obstruct or oppose a law enforcement officer ... in the execution of a legal duty, without offering or doing violence to the person of the officer." Petitioner's Exhibit No. 88. In a subsequent conversation, the Sheriff of Lafayette County told Ms. Townsend, "[W]ithin one year there will be no record of this," (T. 76) referring to the legal proceedings occasioned by the citations and affidavits Wendell Feagle executed against Ms. Townsend in May of 1981. When traffic citation No. 137-660Q, Petitioner's Exhibit No. 13, arrived in the mail, Ms. Townsend learned that it had been alleged that she "RAN SCHOOL BUS STOP SIGN," on October 24, 1984. Although the citation stated that it was for an infraction that did not require a court appearance, Ms. Townsend engaged a lawyer to contest the accusation; and to defend against a subsequent charge that she was guilty of the same infraction at the same place on November 8, 1984. Petitioner's Exhibit No. 15. Carla S. Brock, a teacher at Lafayette High School, drove the bus and executed the affidavits accusing Ms. Townsend on both occasions. After an evidentiary hearing on January 10, 1985, Ms. Townsend was "found guilty ... of passing a stopped school bus ... in both cases." Petitioner's Exhibit No. 18. Ms. Townsend testified to the effect that she viewed her legal problems as "minor traffic violations," (T. 66) and explained her answer to question No. 33, as follows: I think 43 was my signature, and 33 was asking me if I had been arrested, and I hadn't been arrested. A witness at hearing testified in regard to question No. 33, "it is highly unusual to see one that says 'including' traffic violation[s]." (T. 125).
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
The Issue The issue to be determined is whether Petitioner, the Palm Beach County School Board (the School Board or Petitioner), had just cause to terminate Respondent’s employment as a school bus attendant.
Findings Of Fact Petitioner, Palm Beach County School Board, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. The authority to supervise the school system includes the hiring, discipline, and termination of employees within the school district. Respondent has been a School Board employee since 2000. From 2000 to approximately 2007, she worked as a paraprofessional in the classroom, where her duties included assisting with exceptional education students. In 2007, she moved from the classroom to a position as a bus attendant, again working with exceptional education students as they were transported to and from school. Because of the population she served, her job included making sure that students were secured in their seats, including those who are transported in wheelchairs. As a bus attendant, Respondent was required to attend training each year at the beginning of the school year. The training included the transport of students with disabilities and the management of student conduct. Respondent was also subject to the guidelines contained in the School District of Palm Beach County Bus Drivers and Bus Attendant Handbook (Transportation Handbook), which reflects policies of the Transportation Department of the School Board and has not changed since 2011. She received a copy of the Transportation Handbook and was trained on the rules and procedures it contains. In chapter 2, section 8 of the Transportation Handbook, it states, “[t]he Bus Driver or Bus Attendant do not have the authority to strike or hit a student or to retaliate if struck or hit, but does have the right to reasonably prevent harm to him/herself.” Chapter 6, section 20 includes the following directions: When you are interacting with special needs students it is important to find out if the student understands that her/his actions are inappropriate or unsafe. It may be that the behavior is related to the particular disability and is not willful or intended behavior. If the disability is at the root of the student’s behavior, discipline may not be appropriate. * * * The bus attendant, as well as the Bus Driver, should learn the names of all students on the bus. Greet them kindly each day. Inquire about how they are feeling, how that did in school that day, etc. Let them know you care about them as people. This helps to set a pleasant and positive tone for the bus trip. Respondent also received training on the School Board’s Code of Ethics Policy, as well as receiving a copy of the policy itself. On April 27, 2010, Respondent electronically signed the Code of Ethics Acknowledgement Receipt indicating that she had received the training and read, understood, and agreed to comply with School Board Policy 3.02, the Code of Ethics. Policy 3.02 specifically defines unethical conduct as including committing any act of child abuse, including physical or verbal abuse; committing any act of cruelty to children or any act of child endangerment; and engaging in misconduct that affects the health, safety, and welfare of a student. Respondent worked on the Royal Palm School route. Royal Palm School is a school that is restricted to special needs students with significant cognitive and physical impairments. All bus routes for Royal Palm School require the use of bus attendants to assist with the students. Respondent chose the Royal Palm School bus route in order to work with Vernessa Edwards, a bus driver with whom Respondent worked for over two and a half years. She was working with Ms. Edwards the day of the incident giving rise to these proceedings. M.S.H. is a special needs student on the Royal Palm School bus route. M.S.H. is approximately 18 years old and suffers from an autism spectrum disorder. He is a large, muscular young man and is non-verbal. At the time of the incident giving rise to this case, M.S.H. was a fairly new student on Respondent’s bus. However, in the short time that he had ridden the bus, he had exhibited some disruptive behavior and both Respondent and Ms. Edwards were somewhat afraid of him. His prior behavior had led Ms. Edwards and Ms. Alexander to request that he ride the bus with a harness in order to restrict his movement. Their request had been added to his IEP (Individual Education Plan), but the harness provided was too small for M.S.H. As a result, while his movement was restricted, it was not as restricted as it would have been if the harness had fit him properly. M.S.H.’s shoes also were removed while he was on the bus in order to prevent him from throwing them to get attention. On October 29, 2015, M.S.H. was a student on the Royal Palm School route in the afternoon. Ms. Edwards had instructed Respondent not to seat any student in front of M.S.H. because of his aggressive behavior. Despite this instruction, Respondent placed a younger female student on the bench directly in front of M.S.H. Bus attendants are instructed to sit at the back of the bus, so that the adults on the bus are in different locations. This policy is implemented so that, in the event that there is an accident, at least one adult would be likely to be available to assist the students. Respondent did not follow this policy, but instead sat near the front of the bus, next to the younger student on the bench in front of M.S.H. At the beginning of the bus route, M.S.H. was fairly quiet. He was carrying a baggie filled with cereal, and seemed content. However, several minutes into the bus route, M.S.H. started rocking back and forth in his seat, and then began banging on the bus window. M.S.H. started flailing his arms around, and tried to reach toward Respondent to hit her with his baggie of cereal. Ms. Edwards called the dispatch officer to report the behavior. At first Respondent ignored him, and stood up to let other students off the bus. When she sat down, she continued to ignore him until he hit her with the cereal baggie. Respondent then snatched the baggie out of his hand, looked at him and after a moment returned the baggie to him. M.S.H. then sat in his seat, relatively quiet, for the next two minutes: however, while Respondent and Ms. Edwards assisted a wheelchair-bound student to exit the bus, M.S.H. resumed hitting the window. Soon after the bus resumed forward motion, M.S.H. once again hit the window, and then started reaching for Respondent with both hands. Respondent made no attempt to soothe him. Instead, she stood up and said to him, in an angry voice, “keep your hands to yourself!” M.S.H. responded by hitting her with the baggie of cereal and by reaching forward over the back of Respondent’s seat toward the young girl sitting next to Respondent. Once again, there was no attempt by Respondent to calm M.S.H. To the contrary, Respondent responded by punching M.S.H., three to four times and yelling at him. While Respondent does not dispute hitting M.S.H., she does not take responsibility for her actions and does her best to minimize them. She claims that hitting the student was not intentional and that it was “just a tap.” The undersigned has viewed the videos of the bus trip several times. It was no tap, and the action taken was definitely deliberate. Respondent hit M.S.H. so forcefully that the sound of the impact could be heard clearly on the bus surveillance tapes, as taken from the front, back, and middle of the bus. Respondent claimed that she was defending the little girl sitting in front of M.S.H. because he had hit her, and the child had cried out. While M.S.H. did reach over the seat toward the younger student, he did not make contact with her because of his harness, and she did not cry out. Respondent also stated that she had never before hit a child on the bus. Respondent has a short memory. The District also presented the bus video from October 21, 2015, slightly more than a week earlier. On that day, Respondent was strapping the wheelchair of another disabled student into place. While she was securing the wheelchair, she was standing to the side of the child’s wheelchair, leaning over him with her arms on either side of him. In short, while perhaps necessary, Respondent was definitely invading the child’s personal space. The child pushed against Respondent’s hand, and Respondent slapped him, telling him not to touch her. There was nothing soothing in the way she reacted to this child, just as there was nothing soothing in the way she reacted to M.S.H. When Respondent denied at hearing that she had ever slapped a child before hitting M.S.H., she was asked about the encounter with the wheelchair-bound child from the week before. The following exchange took place: Q. So, Ms. Alexander, you admit that you hit student M.S.H.? A. Yes. Q. And you hit him more than once? A. Yes. Q. And although you claim it’s not intentional; that it was a reflex, you actually hit him four times? A. I didn’t know how many time I hit him. Like his, to myself I counted four time. I don’t know how many time I did it. It was a quick reaction. I don’t know how many time I did. But I do admit it, that I hit him. Q. But you saw the video? A. I saw it. I was shocked. Q. And you had the opportunity to view the entire video? A. With you, yes. Q. And based on what you saw, it wasn’t a reflex, was it? A. Yes. Lord as my witness, yes. Q. So your reflex was to hit him. But you saw the video. It was more – it was more – A. I know it. When it happened I didn’t know until I saw the video because I did it so fast. Q. You just testified that you were shocked? A. I was shocked. Lord as my witness, I was shocked. Q. You were shocked by your own behavior? A. My own behavior, yes. Q. You testified earlier that you’ve never slapped a student before? A. Never slapped a student before, yes. Q. But in my office you also saw the video that’s been introduced into evidence as Exhibit 20-B where you said the other student in the wheelchair, M, and the video shows you slap his hand and you said don’t touch me? A. I didn’t hear that, but if you said it, it happen. Q. But you saw the video, and you slapped his hand? A. I’m always hitting him like that. I’m with him like that, and he like to kick his feet like that. So it’s your normal course to slap the students like that? A. No, no. I play with him, tease with him. I don’t know-–it just a way I interact with him. There was nothing playful about the way Respondent slapped this child’s hand. Moreover, Ms. Edwards’ reaction when Respondent hit M.S.H. does not reflect the surprise or shock that one would expect if Respondent had in fact never previously slapped a child. Instead, Ms. Edwards’ expression could be described as resigned dismay, more indicative of someone who had, sadly, seen this behavior before, and was hoping not to see it again. Ms. Edwards reported the incident with M.S.H. to her superiors. As a result, Respondent was reassigned from her position as a bus attendant and had no further contact with students. It does not matter whether Respondent’s behavior toward M.S.H. was the first time or the fortieth time she had acted this way. A single case of slapping a child in the manner that Respondent slapped M.S.H. is just cause for termination. While the School Board’s collective bargaining agreement provides for progressive discipline, there is authority for termination where the conduct for which discipline is sought is sufficiently egregious. Respondent had no prior formal discipline, although she had on two occasions received formal counseling and directives regarding aggressive behavior toward co- workers that would violate the School Board’s Code of Ethics Policy. Dr. Elvis Epps, the School Board’s human resources manager, testified that based on the investigation into Respondent’s behavior toward M.S.H., the superintendent recommended that she be terminated because her actions represented a real and immediate danger to the students in the school district and a flagrant and purposeful violation of the reasonable rules of the School Board. Dr. Robert Avossa was hired as superintendent of schools for the school district in June 2015. Since his employment as superintendent, the School Board has consistently terminated employees who have hit a student. It is common knowledge for employees of the School Board that hitting a student is grounds for termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order determining that just cause exists for a 15-day suspension without pay and termination of employment. DONE AND ENTERED this 16th day of December, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2016.
The Issue The issues in this case are whether Respondent, Theresa A. Velez (Ms. Velez), violated Pinellas County School Board (School Board) Policy 4140A(9a), "Failure to perform duties of the position"; School Board Policy 4140A(23), "Failure to comply with Board policy, State law, or appropriate contractual agreement"; and Section 2.02 of the Pinellas County Schools Transportation Department Bus Driver's Handbook (Handbook), and, if so, whether a one-day suspension without pay is warranted.
Findings Of Fact On January 18, 2000, Ms. Velez became a full-time bus driver for the School Board. In the 2009-2010 school year, she was a relief driver. As a relief driver, Ms. Velez would take the routes of other bus drivers, who were off from work or sick, or when there was a bus breakdown. She was paid 85 cents more per hour than the regular drivers. On February 22, 2010, she was driving Route 622. The bus driver position for that route was vacant,1 and Ms. Velez and other relief drivers would drive the route when assigned to do so. Route 622 leaves from Clearwater Intermediate after 4:00 p.m., when the students are released from the school. Each of the buses is equipped with a video camera that records the activity on the bus during the route. On February 22, 2010, a video camera recorded the activity on the bus that Ms. Velez was driving. Ms. Velez had had problems with some of the students when she had driven Route 622 before. On February 22, 2010, she asked an assistant principal at Clearwater Intermediate to come on the bus and have some of the children change their seats because some of the children who sat in the back of the bus were mischievous.2 Ms. Velez wanted some students moved on the bus so that they would not be sitting near their friends and engaging in mischief. She told the assistant principal that she felt that some of the students were unsafe to drive. The basis for this comment was her previous experience with the bus route, when the children were hanging out the windows, opening the windows even with the air-conditioning on, and screaming. The assistant principal told Ms. Velez that she had requested a seating chart and told Ms. Velez to pull over on the grass. She did not request a seating chart from Ms. Velez. When the assistant principal came on the bus, she was carrying a sheet of paper, and Ms. Velez had a sheet of paper. Based on the assistant principal's earlier statement that she had requested a seating chart, it is inferred that she did get a seating chart. It should be noted that a seating chart would have not been necessary to accomplish Ms. Velez's request that students exchange seating. All she had to do was to identify the students who had misbehaved in the past and tell the assistant principal. The assistant principal did move some students. One student argued with the assistant principal. The assistant principal told the student to get off the bus because she was suspending him from the bus. The student essentially ignored the order, and the assistant principal did not follow-up on the disciplinary measure of suspending the student from the bus. After Ms. Velez left the school, she pulled the bus over and stopped two times because the students were eating on the bus. The students were asked to stop eating before she pulled over, but the students ignored her. One student in particular was involved in both incidents of eating on the bus, and she appeared to be egging on the driver. The last time a package of food was taken from her, the student talked back to Ms. Velez using curse words. Eating on the bus is considered a minor offense. The Pinellas County Schools' Code of Student Conduct includes special rules concerning students' conduct while riding the school bus. The rules require that students remain seated at all times and prohibit students from distracting the driver with loud conversation or noises, eating or drinking on the bus, and using obscene language or gestures. All of these rules were violated by some of the students on the bus on Route 622 on the afternoon of February 22, 2010. One of the students called Ms. Velez a bitch. One student who was seated two seats back from the bus driver had headphones and was singing loudly during most of the bus ride, frequently using profanity. Her singing was loud enough to be distracting. Other students were holding what appeared to be packages of food up so that Ms. Velez could see them through the rearview mirror. Some school officials consider that the noise level of the students on the bus was not out of the ordinary. While the noise level may be considered normal for middle-school students, it should not be tolerated. Nor should the use of profanity and the lack of respect by the students be tolerated. Ms. Velez pulled the bus over a third time. Two of the students pulled down windows on the air-conditioned bus. Ms. Velez warned the students to pull up the windows before she stopped the bus. One student did pull the window back up and then pulled it back down after the bus was stopped. The other student did not pull the window up until after the bus was stopped, and Mr. Velez had asked her several times to close the window. One of the students told Ms. Velez that another student was having an asthma attack. Ms. Velez called dispatch to see if she could get some assistance for the student who had asthma. Ms. Velez stated at the final hearing that she was unable to reach dispatch; however, the video does record a response from dispatch. It is unlikely with the amount of noise that was going on at the time of the response and Ms. Velez yelling at the students to close the windows that she heard the response. Ms. Velez claims that students were throwing nickels at her before she pulled the bus over; however, the video recording does not show any students throwing anything at her. Instead of pulling to the right side of the road the third time that she stopped, Ms. Velez pulled the bus into a left-turn lane, which was the center lane of the road. At the time, she felt that was the safest place to stop and that she could not continue to safely drive with the conditions caused by the students' behavior. She had been in the left lane of a four-lane road when she turned into the center-turn lane. She could not go to the right. However, she could have turned into parking lots that were on the left side of the road. Pulling into the center turn lane did put the safety of the students at issue because the students could not safely depart from the bus, if necessary, because there was traffic on both sides of the bus. The School Board claims that Ms. Velez left the school bus idling while she left her seat and attempted to get the students to comply with her directives. It could not be determined from the video that the bus was idling, when she stopped the bus, and there was no direct testimony from anyone present when the bus stopped that the bus was idling. While the bus was pulled in the center lane, Ms. Velez attempted to get the students to close the windows. Some of the students were shouting at Ms. Velez, using profanity. Ms. Velez called dispatch and advised that the students were out of control. Ms. Velez used her cellular telephone to contact dispatch and advised them that she was in the center lane on West Bay and that the students were out of control. She requested that the police be notified and advised that she was going to pull over to 20th Street, which is a side road off West Bay. When she stopped at 20th Street, she advised dispatch that she was southbound on 20th Street. While stopped at 20th Street, the students' behavior did not improve until the police arrived. Some of the students moved to the front of the bus, pushing and demanding to be let out. At least four of the students pushed the bus door open and left the bus. If a bus driver feels that a student is guilty of misconduct on the school bus, the driver is to make a report of misconduct, which is commonly known as a referral. The referral states: "Any misbehavior which distracts the driver is a very serious hazard to the safe operation of the bus and jeopardizes the safety of the passengers." Types of misconduct are listed on the referral and include refusal to obey driver; eating/drinking/chewing gum; too noisy; and profanity. Ms. Velez did not make any referrals as a result of the incidents on February 22, 2010. She was under the impression that some of the students had been suspended from the bus; however, none of the students had been disciplined by the school. Clips of the video were sent to the school's administration, but no action was taken against the students. Section 9.02 of Handbook provides: 9.02 DRIVER GUIDELINES FOR HANDLING STUDENTS Drivers are required by Florida Statute and Rules of the State Board of Education to maintain order and safe behavior by the students on the school bus. Rules for student conduct on the school buses are set forth in the School Board's Student Code of Conduct. Assign seating for the entire bus. Assigning seats for all riders can help a driver learn student names more rapidly, set a tone of behavioral control, and turn student seating into a familiar routing rather than a daily free-for-all. At the start of the year, create a seating chart for the bus. The suggested procedure for arranging seating is to load window to aisle or back to front according to stops. An accurate seating chart is required to be maintained at all times. A copy of the seating chart is required to be maintained at all times. A copy of the seating chart will be given to the school Field Operations Supervisor, and a copy will be left on the bus. Drivers will make every reasonable effort to deal with infractions of the rules of student conduct. If a driver overlooks the misbehavior of the student(s) in their care, they will lose the respect of the well-behaved students. In cases of minor infractions, the driver should warn the student(s) involved without stopping the bus, if possible. Drivers will, if at all possible, stop the bus if the behavior problem is a serious one. Change the students' seats when possible to de-escalate the situation. Drivers will immediately contact the dispatch office for their assigned area via two-way radio and provide them with details of the situation. If there is a physical confrontation between two or more students, drivers may take all reasonable measures necessary to separate the students involved in the confrontation to preserve the safety and prevent injury. Except in situations of an extremely unusual or serious nature, drivers will not park buses on the side of the road for an extended period of time. Such action should be limited to no more than five (5) minutes in duration. The driver will not return a group of students to a school in the afternoon after reaching a point of approximately one-half (1/2) the distance between the school and the last stop on the trip. It is acceptable to pull into a nearby school for assistance; provided dispatch has been contacted and the school is notified. If you do have to return to a school, contact dispatch so they can call the school and arrange for an administrator to meet the bus. The driver is required to obtain the names of students leaving the bus. The driver will notify the Field Operations Supervisor and dispatch upon returning to the compound that the students have been removed from the bus. Section 2.02B of the Handbook states: "Drivers will possess the appropriate Commercial Driver's License at all times while employed by the Pinellas County Schools and will maintain their license in good standing." Section 10.5.2 of the 2010 "Official Florida CDL Handbook" provides: 10.5.2 Handling Serious Problems Tips on handling serious problems: Follow your school's procedures for discipline or refusal of rights to ride the bus Stop the bus. Park in a safe location off the road, perhaps a parking lot or a driveway. Secure the bus. Take the ignition key with you if you leave your seat. Stand up and speak respectfully to the offender or offenders. Speak in a courteous manner with a firm voice. Remind the offender of the expected behavior. Do not show anger, but do show that you mean business. If a change of seating is needed, request that the student move to a seat near you. Never put a student off the bus except at school or at his or her designated school bus stop. If you feel that the offense is serious enough that you cannot safely drive the bus, call for a school administrator or the police to come and remove the student. Always follow your state and local procedures for requesting assistance. Prior to February 22, 2010, Ms. Velez was aware that she should not stop the bus in the middle of the road when she needed to correct student misconduct. In 2003, she had acknowledged to the compound supervisor for the Pinellas County Schools Transportation Department that the appropriate course of action in dealing with student misconduct would be to pull over to the side of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Velez violated School Board Policies 4140A(9a) and 4140A(23) and Section 2.02 of the Handbook and suspending her for one day without pay. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.
The Issue Whether Respondent committed the offenses alleged in the Notice of Specific Charges (NSC) filed by Petitioner and the penalties, if any, that should be imposed.
Findings Of Fact At all times, Petitioner has been a duly constituted School Board pursuant to Article IX, Florida Constitution, and Section 1001.32, Florida Statutes (2005).1 At all times relevant to this proceeding, Respondent has been a member of AFSCME and, as such, has been entitled to the benefits of the AFSCME Contract. Since November 15, 2002, Respondent has been employed by Petitioner as a school bus driver and assigned to the North Regional Transportation Center (NRTC). Until this incident, Respondent had not been disciplined by Petitioner. At all times relevant to this proceeding, Ms. Carter was a school bus attendant assigned to the NRTC. At all times relevant to this proceeding, Ms. Cone was a Field Operations Specialist assigned to the NRTC and had supervisory authority over Ms. Carter and Respondent. At all times relevant to this proceeding, Ms. Sweeting was the Director of Petitioner’s NRTC and had supervisory authority over Ms. Cone. At all times relevant to this proceeding, Ms. Moss was a District Director in the Office of Professional Standards and assisted with performance and discipline of employees. She ensured that Petitioner complied with applicable due process requirements during a disciplinary proceeding. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. School Board Rule 6Gx13-E-1.10 incorporates by reference Petitioner’s Handbook for School Bus Drivers, Aides, and Operations Staff (Handbook). Section 3 of the Handbook is captioned “School Bus Driver Guidelines and Procedures.” Section 3.4 of the Handbook, captioned “Duties,” imposes the following duties on a school bus driver: . . . Drivers must report defective equipment to their Dispatch Office in writing on the “Driver’s Request for Repair (DRR)” form. The report must be made as soon as possible after the problem is detected. . . . If the driver encounters a problem while operating the vehicle, the Dispatch Office must be notified immediately and the driver must wait for instructions from the garage. Section 3.3 of the Handbook, captioned “Regulations,” imposes the following responsibilities on a school bus driver: “. . . Prepare immediately an accident report after every accident involving the bus or bus passenger. This report must be completed with the driver’s supervisor. Section 10 of the Handbook is captioned “Operating Procedures and Safe Driving Principles.” Section 10.1 of the Handbook, captioned “School Bus Operation,” provides as follows: Drivers must perform a complete pre-trip inspection of their assigned buses at least twice daily. The pre-trip inspection must be accomplished before the driver departs the compound with the bus. Pre-trip inspection results must be documented on the form provided for this purpose. . . . On August 20, 2004, Respondent was assigned to drive the bus along school bus Route 22. There is a bridge on Northwest 42nd Avenue between Northwest 179 and 183 Streets (the 42nd Avenue Bridge). On August 20, 2004, the 42nd Avenue Bridge was undergoing construction work. There were barricades, construction cones, and other warning devices that were visible to approaching drivers. Because of the construction, the NRTC had informed school bus drivers not to cross the 42nd Avenue Bridge. Respondent testified that he did not hear that warning, but that he knew the bridge was undergoing construction work. On the morning of August 20, 2004, Ms. Carter was the bus attendant on the bus driven by Respondent. At the time of the accident described below, there were four students on the bus. On the morning of August 20, 2004, Respondent drove the bus across the 42nd Avenue Bridge. There was a dispute between the parties as to what, if anything, occurred while Respondent was driving the bus across the 42nd Avenue Bridge. The greater weight of the competent evidence established that the bus collided with an object on the 42nd Avenue Bridge or with the 42nd Avenue Bridge itself. This accident caused minor damage to the bus.2 Respondent did not immediately stop to inspect the bus. After Respondent crossed the 42nd Avenue, he continued on his route, picked up students, and stopped at North Dade Middle School (NDMS) to drop off students. While stopped at NDMS, Respondent inspected the bus and noticed that the outer tire on the right rear of the bus was flat. Respondent testified that the inner tire on the right rear of the bus did not appear to be damaged. Respondent did not contact or make any report to the transportation dispatch office at that time. Respondent drove the bus with the damaged tire to the NRTC bus parking area. Respondent made the determination that it was safe to drive the bus with the damaged tire without consulting anyone.3 After Respondent returned to the NRTC bus compound, he completed a Driver’s Request for Repair (DRR) form, which indicated that the right rear outer tire needed repair. Because of Respondent’s DRR, the bus was taken from the bus parking area to the garage. After Ms. Carter returned to the bus compound with Respondent, she reported to Ms. Cone that the bus had had an accident as it crossed the 42nd Avenue Bridge. The report was in the form of a message left for Ms. Cone on her voicemail. Ms. Cone received Ms. Carter’s message on August 20, 2004, and promptly went to the parking area and then to the garage. She inspected the bus at the garage. Ms. Cone, who has had extensive experience and training in accident investigation, observed that bus’ right rear tire rim was bent and disfigured and that the bus’ door was damaged. After inspecting the bus, Ms. Cone informed Ms. Sweeting of Ms. Carter’s report and of her own observations. Ms. Sweeting and Ms. Cone immediately thereafter went to the 42nd Avenue Bridge, where they observed markings on the bridge that were consistent with a vehicle coming in contact with the bridge. The white stony color of the damaged area of the bridge was consistent with the white stony color Ms. Cone had observed on the damaged tire rim. Although the markings on the bus and on the bridge were consistent with one another, there was no conclusive proof that the markings observed on the bridge were caused by the bus. Ms. Cone took photographs of the bus and the bridge on August 20, 2004. Ms. Cone subsequently delivered the photographs and a report of the accident to Ms. Sweeting. Prior to the final hearing in this matter, Ms. Sweeting was reassigned to the East Regional Transportation Center. When she left the NRTC, Ms. Sweeting left the photographs in a file on her desk. The photographs were subsequently lost or misplaced. Respondent’s qualified representative made a public record’s request for the photographs and was informed that they had been lost.4 A Conference for the Record (CFR) was conducted on August 23, 2004, with Ms. Sweeting presiding. Also present were Respondent and an AFSCME representative. Ms. Sweeting recommended further disciplinary action. A second CFR was conducted October 29, 2004, with Ms. Moss presiding. Also present were Jerry Klein (Petitioner’s Director of Transportation), Ms. Sweeting, two AFSCME representatives, and Respondent. Following the second CFR, Respondent was required to submit to a fitness-for-duty evaluation. Thereafter, Petitioner’s staff made the disciplinary recommendation that was subsequently adopted by Petitioner. The photographs taken by Ms. Cone were available for review at both CFRs. The Handbook does not define the term “accident.” School bus drivers employed by Petitioner are required to undergo training when they are first hired. During training, a driver is taught to immediately report to the transportation dispatcher if his or her bus hits an object and damage to the bus results. A driver is taught that such an incident is an accident. Despite that training, Respondent denied that there had been an accident and explained that he defined an accident as being when someone gets hurt on the bus, when he hits or kills someone, or when he damages the property of another. He would not acknowledge that an accident also includes damaging the bus by hitting a bridge or an object on a bridge. It is undisputed that Respondent failed to document pre-trip inspections on August 18, 19 and 20, 2004. Respondent testified that he actually performed the pre-trip inspections, but that he did no documentation because he could not find the pencil he usually kept on the bus after he returned from sick leave. Respondent’s testimony that he completed the pre-trip inspection but failed to complete the required paperwork, although self-serving, was not refuted. Consequently, it is found that Petitioner failed to prove that Respondent did not conduct a pre-trip inspection, but it did prove that Respondent failed to complete the pre-trip inspection report.5 The parties agree that Petitioner has the authority to discipline Respondent for just cause consistent with the principles of progressive discipline. Article XI, Section 1A of the AFSCME Contract provides, under the caption “Due Process”, in relevant part, as follows: . . . Progressive discipline steps should be followed, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. Therefore, disciplinary steps may include: verbal warning; written warning (acknowledged); letter of reprimand; suspension/demotion; dismissal. Article XI, Section 1B of the AFSCME Contract provides, in part, as follows: . . . [I]t is agreed that disciplinary action(s) taken against AFSCME . . . members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Article XI, Section 4C of the AFSCME Contract provides that termination of employment may occur if a member is guilty of non-performance of job responsibilities. Article XI, Section 3 of the AFSCME Contract provides as follows: If those cases where any employee has not complied with Board Policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order and sustains the suspension of Respondent's employment for 30 calendar days without pay. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005.
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2017.
The Issue The issue is whether Petitioner should terminate Respondent's employment with the Lee County School District for just cause.
Findings Of Fact Petitioner is the acting superintendent of schools for the Lee County School District. References to "Petitioner" shall include Petitioner's predecessors and the Lee County School Board. Petitioner originally hired Respondent as a school bus driver in September 1974. Respondent worked in this capacity for Petitioner for the ensuing 23 years, except for the 1988-89 school year. During the time in question, Respondent worked under an annual contract ending June 30, 1997. During the one-year period ending June 30, 1997, Petitioner entered into a contract with Child Care of Southwest Florida, Inc. (Child Care) for the use of school property, including school buses. The purpose of the contract is to establish a program under which Child Care transports and supervises schoolchildren in after-school and summertime daycare programs. Under the contract, Petitioner provides Respondent with school buses and bus drivers. The contract prohibits the operation of the buses by anyone other than drivers "assigned by [Petitioner]." The contract provides that Petitioner shall charge Child Care for the actual costs of operating the buses, the "drivers' hourly salary," and an additional mileage fee. The contract imposes on Child Care the responsibility of carrying motor vehicle liability insurance for Child Care and Petitioner. The contract requires that Child Care "observe all rules and regulations promulgated by the School Board for its operation of school buses." Petitioner's rules prohibit bus drivers from carrying firearms while on Petitioner's property. The employment contract between the parties also requires Respondent to abide by all state and local laws and rules. Petitioner assigned Respondent as one of the bus drivers under the Child Care contract for the Christmas break in December 1996. On the morning of December 30, 1996, Respondent carried a loaded .22-caliber pistol onto one of Petitioner's school buses. The pistol was in Respondent's jacket, which he placed beside the driver's seat. Respondent then drove his normal route, picking up children and transporting them to Petitioner's public school that, under the contract, Child Care was operating while school was not in session. After finishing his morning route, Respondent left the bus at the public school with the loaded pistol still inside the jacket beside the driver's seat. Late in the afternoon of the same day, Respondent reboarded the bus, allowed the schoolchildren to reenter the bus, and drove his normal route. The loaded pistol remained in the jacket on the bus throughout the afternoon route. Although not charged with the personal use of Petitioner's property, Respondent did not return the school bus after he completed his afternoon route. Instead, he transported his own children to the residence of his estranged wife where Respondent threatened the woman with the pistol. After threatening the woman, Respondent drove the school bus, while still armed with the loaded pistol, to Petitioner's bus lot, where Respondent parked the bus and was apprehended by police, who found the loaded pistol beside the driver's seat, but no longer in a jacket. Respondent knew throughout the day of December 30, 1996, that he was in possession of a loaded firearm while operating Petitioner's school bus.
Recommendation It is RECOMMENDED that the Lee County School Board enter a final order terminating the employment contract of Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1997. COPIES FURNISHED: John M. Hament Kevin J. Hubbart Kunkel Miller and Hament 1800 Second Street, Suite 970 Sarasota, Florida 34236 Harry A. Blair Harry A. Blair, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 Jack Taylor, Acting Superintendent Lee County Public Schools 2055 Central Avenue Fort Myers, Florida 33901-3988
